Al-Kidd

concurring in the denial of rehearing en banc:

I concur in the court’s decision not to rehear this ease en banc, and write to respond to the dissents from that decision.

In March 2005, al-Kidd brought suit in the District of Idaho against former United States Attorney General John Ashcroft, the United States, two FBI agents, and a number of other government agencies and officers in their official capacities. The suit sought damages under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 , 91 S.Ct. 1999 , 29 L.Ed.2d 619 (1971), for violations of al-Kidd’s rights under the Fourth and Fifth Amendments to the Constitution, and for a direct violation of 18 U.S.C. § 3144 . Each of the defendants moved to dismiss under Federal Rules of Civil Procedure 12(b)(2) and 12(b)(6). The district court first denied the 12(b)(2) motion, holding that al-Kidd had properly alleged facts sufficient to establish personal jurisdiction over the parties in Idaho. Next, the district court denied the 12(b)(6) motion, rejecting the defendants’ claims of absolute and qualified immunity. Only Ashcroft appealed the district court’s rulings on the motions. In ruling on Ashcroft’s…

joined by KOZINSKI, Chief Judge, and KLEINFELD, GOULD, TALLMAN, CALLAHAN, BEA and IKUTA, Circuit Judges, dissenting from the denial of rehearing en banc:

The majority holds that a former Attorney General of the United States may be personally liable for promulgating a policy under which his subordinates took actions expressly authorized by law. Judge Bea’s dissent from the panel decision clearly and ably describes the several legal errors the panel makes in reaching this startling conclusion. See al-Kidd v. Ashcroft, 580 F.3d 949, 981-1000 (9th Cir.2009) (Bea, J., dissenting). For my part, I write to express my concern at the scope of this decision. First, the majority holds that al-Kidd’s detention under a valid material witness warrant violated his clearly established constitutional rights — a conclusion that effectively declares the material witness statute unconstitutional as applied to alKidd. Second, the majority holds that a cabinet-level official may be personally liable for actions taken by his subordinates alone. Because of the gratuitous damage this decision inflicts upon orderly federal law enforcement, I must respectfully dissent from our refusal to rehear this case…

Concurrence by Judge MILAN D. SMITH, JR.; Dissent by Judge O’SCANNLAIN; Dissent by Judge GOULD.

ORDER

Judge M. Smith voted to deny the petition for rehearing en banc, and Judge Thompson so recommended. Judge Bea voted to grant the petition for rehearing en banc.

The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc, and the matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed. R.App. P. 35. Judge Bybee was recused in this matter.

The petition for rehearing en banc is DENIED.

with whom KOZINSKI, Chief Judge, and O’SCANNLAIN, KLEINFELD, CALLAHAN, BEA, and IKUTA, Circuit Judges, join, dissenting from the denial of rehearing en banc:

I agree with Judge Bea’s persuasive dissent from the majority opinion and agree with Judge O’Scannlain’s persuasive dissent from denial of rehearing en banc. I add this pragmatic concern: If an Attorney General of the United States can be held liable and subject to monetary damages primarily because of actions of law enforcement subordinates, who allegedly gained and executed a material witness warrant for contrived purposes, I fear that it will become more difficult to persuade a person of great talent and integrity to leave his or her current occupation in order to hold the nation’s highest law office. The panel majority’s decision in effect says “good bye” to many talented persons who would otherwise be willing to serve as Attorney General with great distinction and attendant benefit to our country.